Category Archives: Equality
Apr 21, 2022 Maneesha DeckhaEquality
If pressed to answer the question “Why are humans equal?” or “What grounds our equality in liberal legal orders?”, the answers might run from the circular (“our common humanity”), to the sacred and unprovable (“human dignity”), to the universally posited but untrue (“our capacity to reason”). Despite the dissatisfying nature of these conventional responses, many of us do persist in believing in human equality and also approve of its exalted conceptual stature in our legal systems. Yet, if we take a closer look at equality’s Lockean foundations in the common law, as Jishnu Guha-Majumdar would have us do in his novel article, Lyons, and Tygers, and Wolves: Oh My!: Human Equality and the “Dominion Covenant” in Locke’s Two Treatises, we might have to question the presumed benign nature of the idea of human equality. Guha-Majumdar asks us to consider that our equality jurisprudence, derived as it still is from Locke’s liberal humanism, is premised on something highly unequal, and indeed violent and tyrannical: the domination of nonhuman animals.
The title of Guha-Mujamdar’s article evokes a scene in the 1939 Hollywood film classic, The Wizard of Oz where Dorothy, the Scarecrow, and the Tin Man link arms and chant a verse (“Lions, and tigers, and bears! Oh My!”) to express their fear of who they may encounter as they make their way through a dark forest on their way to Oz. Of course, the lion they do end up meeting is soon exposed as lacking the courage seen by humans to be characteristic of male lions to do anyone harm; this is then one of the character “flaws” that propel the foursome onward to ask the Wizard for help (with Toto, of course, alongside them). The verse though reminds us of the threat posed by “predator” animals. It is this threat that Guha-Majumdar claims gives rise to “a dominion covenant” between all humans, God, and nonhumans that is central to Lockean liberalism. Continue reading "Equality’s Animal Problem: Normalizing Domination and Enabling Racism with Locke"
Mar 11, 2022 Sonia LawrenceEquality
I have found teaching and researching through the pandemic difficult. That is a radical understatement. The pressure to normalize—to work normally, in particular—through what has been happening has come from many sides. So has support, care, compassion and understanding. As a scholar of equality, it seemed obvious both that the pandemic would have differential effects which would exacerbate existing inequalities, and that this would be a useful place for me to concentrate. But concentrating was the problem, and as time wore on it became clear that it might not serve as a solution.
The article that I’m recommending, The University Cannot Love You: Gendered Labour, Burnout and the Covid-19 Pivot to Digital, is one that centres the world of the university and the people that work in that space, asking about what was happening in these spaces. It centres not the idea of equality but the idea of care. It is not legal scholarship. But I think that it offers two things that some legal scholars of equality might deeply value right now. The first is a way to think about the situation we are in. The second is a way that we might reframe or rethink some of the perennial problems of equality law, the public/private divide, the work/life divide, the ways that we divide and differentially burden people. Continue reading "Broken Jars: Academic Labour and Care in COVID Times"
Jan 13, 2022 Chao-Ju ChenEquality
Nausica Palazzo,
Marriage Apostates: Why Heterosexuals Seek Same-Sex Registered Partnerships, __
Colum. J. Gender & L. __ (forthcoming, 2022), available at
SSRN.
The classic story of marriage equality figures same-sex couples’ various maneuvers to enter the legal institution of marriage through the courts, claiming the right to be treated the same as opposite-sex couples and repudiating the counter-claim that same-sex couples ought to be treated differently. Its narratives are dominated by the first part of Aristotle’s equality axiom “likes alike,” yet haunted by the second part of the axiom: “unlikes unlike.” Its counter-stories embrace diverse demands for nonmarriage equality, arguing for alternative forms and mechanisms of relationship recognition based on the objection to the supremacy of marriage and the Aristotelian axiom.
A UK couple, Steinfeld and Jeidan, and an Austrian couple, Ratzenböck and Seydl, went to courts seeking legal recognition of their relationships in forms other than marriage. They are opposite-sex couples seeking to register for same-sex civil partnerships. Their court challenges reverse the equation in the classic marriage equality model. Here are opposite-sex couples demanding to be treated like same-sex couples, not the other way around. Their stories became part of the emerging case law in Europe that is the subject of Nausica Palazzo’s article Marriage Apostates: Why Heterosexuals Seek Same-Sex Registered Partnerships. Continue reading "Nonmarital Equality in a New Light"
Dec 6, 2021 Ezra YoungEquality
- Marissa Jackson Sow, Protect and Serve, __ Cal. L. Rev. __ (forthcoming, 2022), available at SSRN.
- Marissa Jackson Sow, Whiteness as Contract, 78 Wash. Lee L. Rev. __ (forthcoming, 2021), available at SSRN.
In the waning days of Trump’s presidency, the far Right put Critical Race Theory in its crosshairs. In a flurry of executive orders and guidance documents, Trump tried to paint CRT as the cause of racial unrest in our nation. This move, which has since set off campaigns in state legislatures to outright ban CRT in public schools, is unsurprising. Trump and large swaths of his followers are white supremacists full-stop. As such, they see CRT as a threat to their racist agenda.
CRT does not cause “racial unrest,” sow racial hatred, and it is not now and has never been routinely taught in K–12 schools. Those seeking to literally outlaw CRT are not in any honest sense concerned with our youths’ minds or souls. Instead, they fear CRT’s capacity to shed light on how racial division has been and continues to be used to maintain white power. CRT is dangerous because the movement in the academe and in the streets seeks to transform the relationship between race, racism, and power. If the stakes weren’t so high right now, we might chuckle at how ridiculously Trumpian the far Right’s strategy is here. What more Trump move could there be than to claim CRT, which helps us dissect and discuss racism in sophisticated ways, is a bigger threat to our nation than racism itself.
Thankfully, in these troubling times, scholars like Marissa Jackson Sow, continue to build out and expand CRT discourse in new and innovative ways. My focus here is on two of Sow’s recent articles, Whiteness as Contract and Protect and Serve. Continue reading "Trumpism and Critical Contract Theory"
Nov 8, 2021 Kim BrooksEquality
This edited collection came to press as many of us around the world “went home”. Spring (Canadian spring, at least) 2020 had become unfamiliarly quiet. There was so little traffic on the streets that I could hear the ice-maker in our fridge on the main floor producing ice even though my bedroom (on the second floor) door was closed.
Despite the quiet, those work-from-home days were chaotic and exhausting. My days were filled with one zoom meeting after another. As the Dean of a Faculty, I found myself making endless and ostensibly urgent and important decisions, only to change those decisions the next day. I imagined someone watching me “at work”. They would have watched a middle-aged woman, hunched over a small Ikea desk in the corner of her bedroom sitting quietly, but staring intensely, at a laptop screen for hours, periodically yelling loudly at the screen. My days were both filled with others and yet isolating and alienating. Continue reading "The Timing is Perfect for Revolutionary Feminisms"
Sep 13, 2021 Erez AloniEquality
Increasingly, courts in the United States and Canada are called to rule on parental disputes about the gender identity and expression of children. Often in the background of a custody dispute, courts are faced with the task of deciding what parental arrangement is better to support the gender identity/expression journey of a young child. In the classic case, one parent encourages the gender exploration of the child and the other objects, often also accusing the supportive parent of putting ideas about gender nonconformity into the child’s head. This new terrain raises serious questions about gender, equity, and the best interests of the child. And, of course, both in the U.S. and Canada, cases are often accompanied by wide media coverage and politics that try to drag this situation into the culture wars.
To the rescue arrive two excellent and original articles, one from Canada, Respecting and Protecting Transgender and Gender-Nonconforming Children in Family Courts, and the second from the U.S, Exploring Identity. They are not the same, but they tackle similar questions. Each is valuable, and together they provide rich and largely missing context that can guide courts, litigants, and policymakers when they navigate these relatively new and complex cases. They provide clear analyses of relevant terminology, science, doctrine, and caselaw, and each makes specific policy recommendations. Continue reading "Judging Gender"
Aug 12, 2021 Saru MatambanadzoEquality
The murder of George Floyd forced a national conversation and the re-invigoration of our unfinished national racial reconciliation project. In the summer of 2020, as COVID-19 infections spread due to governmental failures, George Floyd was held down, choked, and murdered in Minneapolis, Minnesota by an agent of the state. This murder occurred in front of witnesses like Darnella Frazier, who bravely videotaped it and shared it with the world. Reacting to these events, universities undertook initiatives to address shortcomings in racial equity and to meet demands of students, faculty members, alumni, and community stakeholders. At law schools responsive to these calls, this involved many acts, including embracing the adoption of anti-racism solidarity statements, creating academic centers focused on blackness like the study of race and law, establishing the endowment of scholarships and job opportunities for minority students, and hiring more scholars of color.
Against this backdrop comes a breathtaking, but brief, essay by Professor Carliss Chatman and Professor Najarian Peters. This essay, a skillful example of protest literature, performs the difficult task of truth-telling about legal education as it relates to hiring minority faculty members. It indicts the left-legal liberalism of the legal academy, demonstrating how those who espouse the goal of diversifying the legal profession often fail to make change in terms of their hiring practices. Through storytelling, a classic method and weapon in skillful hands like theirs, the authors paint a picture that is familiar to many individuals who are the “diversity people” on their respective hiring committees. Navigating a landscape of legal professionals who consider themselves liberal and claim not to be racist, the authors reveal how shifting standards, implicit bias, and constant contradictions shape the hiring process at most law schools leading to one ultimate result: law schools fail to hire faculty members of color, particularly Black, Latino, and Indigenous individuals, even when they are highly qualified for these roles. Continue reading "Dancing Around Change: An Honest Engagement with the Perils of Performativity in Law School Hiring"
Jun 28, 2021 Doron DorfmanEquality
Recently, researchers and advocates have brought to light the extra financial costs of living with disabilities, or as some have called it the “crip tax.” They showcase the expenditures disabled people make because they have a disability, which are usually invested in necessities such as assistive technology, household accessibility renovation, service animal maintenance, or the purchase of special food due to dietary restrictions. These expenses are particularly onerous as this population has historically faced major barriers to entering and staying in the workforce, in addition to earning lower wages on average compared to their non-disabled peers.
In her excellent new article, Disability Admin: The Invisible Costs of Being Disabled, Liz Emens makes an important contribution to this discourse about the “taxes” imposed on individuals with disabilities. Emens exposes and conceptualizes other significant, yet non-financial, costs imposed on individuals with disabilities as they move through the non-disabled world. These costs are borne out of the incredible amount of time and mental energy people with disabilities exert on a daily basis while engaging with mundane tasks (like repeatedly explaining their needs to strangers, filling endless amount of forms, or constantly rearranging their routes so that they would be accessible), red tape, and the advocacy needed to exercise their rights. This is a type of labor which Emens calls “disability admin,” and is an extension of her work on “life admin.” Continue reading "The Everyday Struggles of Disability Law"
Jun 27, 2021 JotwellEquality
Continue reading "Update of Jotwell Mailing Lists"May 27, 2021 Elaine CraigEquality
In Settler Colonialism, Policing and Racial Terror: The Police Shooting of Loreal Tsingine Sherene Razack gives voice to the settler colonial violence perpetrated against Loreal Tsingine, a 27-year-old Navajo women who was shot and killed by Austin Shipley. Shipley, a white male police officer, claimed he was trying to apprehend her for alleged shoplifting. The article, which is brilliantly and compellingly written (as is typical of all of Professor Razack’s work) makes several claims. Most centrally, however, she asserts that racial terror – a violence done at both structural and individual levels – is at the very heart of the settler colonial project. In the North American context, the aim of the settler colonial project is the erasure, or in Razack’s words the annihilation, of Indigenous peoples in the interests of white settlement and prosperity. It is a state sponsored and centuries-old endeavour manifested through, for example, land and resource dispossession, cultural genocide, legal discrimination, the carceral state, and the destruction of the social, physical and political infrastructures that serve Indigenous peoples health and safety. Razack begins her analysis by reminding us that settler colonialism is an ongoing project, one that requires the continual imposition of racial terror.
Racial terror, Razack explains, maintains white supremacy and protects white entitlement, but also reassures today’s white settler subject that the imagined threat of racial otherness is contained. Settler colonialism is premised on the extraction not only of resources and lands but also through “everyday extractive relationships” that consolidate white superiority, among other things, by violating and annihilating Indigenous bodies. (P. 2.) Through a detailed excavation of the psychic underpinnings of the settler state, Razack reveals the way in which white identity is constituted through the continual reification of Indigenous peoples as a threat to ‘the community’. She writes, “[p]olice shootings of Indigenous people and the legal response to police use of force (along with everyday settler violence) are a part of the racial terror that is a central part of settler colonialism.” (P. 1.) Continue reading "The Quotidian and Constitutive Practice of Police Brutality Against Indigenous People"
